Majority
p. 599The People of the State of New York ex rel. Ferdinand Hermann, Appellant, v. Henry J. Kaufman and Others, as Assessors of the Town of Greenburgh, County of Westchester, Respondents. Second Department, October 23, 1907.
Headnote
Tax—certiorari to review assessment — determination confined to issues pleaded.When the petition on certiorari to review an assessment, and the objections made on grievance day charge only overvaluation, the relator is not entitled to a cancellation of the assessment upon the ground that although a non-resident, he was assessed on the resident list, and a referee should he authorized to inquire into the question of overvaluation only.
Appeal by the relator, Ferdinand' Hermann,' from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of April, 1901, denying the relator’s motion on the petition for a writ of certiorari, on the writ and the return to cancel the assessment of his land in the town of Greenburgh, Westchester county, and appointing a referee to inquiz-e into the question of overvaluation. The certiorari was to review the .assessment of the relator’s lands.
Howard H. Morse, for the appellant.
Hugh A. Thornton, for the respondents.
The appellant’s brief is very misleadizig. The principal az-gument in it is that the court below erred in not cancelling the assess
p. 600
ment of the appellant’s land on the' motion therefor on the petition, writ and return, on the ground that.the petitioner being a, non-resident, he was nevertheless assessed in the resident list. But when we turn to the statement filed with the assessors on grievance" day by the appellant, and to.the petition for the writ of certiorari, we find no such- grievance or illegality complained of. On the contrary, the appellant’s sole complaint therein is that his assessment. was erroneous for overvalüátion, as compared with the assessment of other property, and unequal' and he only asked for its reduction. The court below refused to inquire into the question of inequality, for the- reason that the statement filed' on grievance day did not specify the instances of inequality, i. e., in which the property of others was. proportionately, undervalued. This seems to be made the law Jhy the courts (People ex rel. Sutphen v. Feitner, 45 App. Div. 542 ; People ex rel. Erie R. R. Co. v. Webster, 49 id. 556 ), although there is no. such requirement in the Tax Law (sec. 36). There is acquirement that such instances'be given in the petition for the writ of certiorari (sec. 250). The .order appealed from appoints a referee to inquire into the allegation of overvaluation only.
The order should be affirmed.
Hooker, J., concurred; Hirschberg, P. J., Rich and Miller, JJ., concurred in result.
Order affirmed, with ten dollars costs and disbursements.